ALJDEC decisions subject to certification as final

2011A-1983-ROC · Registrar of Contractors · 2011-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 28, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Frank Naughton. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class B (No. 189254) License issued by the Registrar of Contractors. 2. The Respondent also holds a Class B-1 (No. 182218) License issued by the Registrar of Contractors. 3. There was no dispute that this is a residential matter where the Respondent installed two evaporative coolers on the Complainant’s residence. 4. The Complainant alleged that the Respondent damaged his roof during the installation of the new evaporative coolers and demanded that the Respondent cause the correction of the alleged roof damages. 5. When the Respondent declined to comply with the Complainant’s demand, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 6, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. The assigned Agency Inspector performed a prehearing inspection prior to the hearing of this matter. 8. Credible testimony and evidence established that there were three (3) items on the Corrective Work Order that required corrective action by the Respondent and that all three items had been fully corrected. 9. Credible testimony and evidence established that the Respondent has fully complied with the terms of the Corrective Work Order issued in this matter. 10. Credible testimony and evidence established that the Respondent’s construction work on the Complainant’s residence now fully complies with all applicable workmanship and industry standards. 11. The Complainant sharply disagrees with the Agency Inspector’s determination not to require corrective action on the remaining fifteen (15) items of the Complaint at issue. 12. The credible testimony and evidence of record was insufficient and failed to support a finding that the Respondent’s construction work on the remaining fifteen (15) items of the Complaint were in violation of applicable workmanship and industry standards. No corrective action by the Respondent was shown to be necessary for the remaining fifteen (15) items set forth in the Complaint at issue. 13. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent abandoned the Complainant’s construction project or refused to perform construction work the Complainant’s residence without legal excuse. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW. 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, December 7, 2011.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826